Supreme Court mostly upholds EPA’s greenhouse gas authority

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Cows graze near a coal-fired power plant in Maryland. The Supreme Court ruled Monday that facilities that are already subject to EPA regulation of other pollutants can be brought under federal control for greenhouse gas emissions as well. Texas’ large coal-fired power plants fall in that category and will almost certainly have to comply with greenhouse gas rules.

However, a 5-4 majority led by Justice Antonin Scalia placed new limits on how those regulations could be implemented. It also reduced the number of facilities subject to the EPA’s 2012 permitting rules.

Scalia’s opinion repeatedly rapped theEPA for overstepping its authority but in the end upheld most of its power anyway. Even so, industry and other EPA critics said the majority’s strong language should embolden Texas and others to sue over new EPA rules announced last month.

Texas Attorney General Greg Abbott was ebullient Monday. “This is a great victory for the rule of law and for the Constitution,” Abbott said in a statement. “It is a resounding defeat for those, like the president, who would use unelected bureaucracies to override the will of the people.”

But in fact, Monday’s decision was a split one. Neither Abbott nor industry groups in Texas got what they most wanted. While five justices agreed that the EPA had overstepped its bounds in announcing the new requirements, seven justices separately voted to uphold the EPA’s underlying authority to regulate greenhouse gases.

That’s a critical win for President Barack Obama, who can continue to use the EPA to combat global warming, said environmental lawyer Charles Warren, a former EPA official in New York.

At stake had been the court’s landmark 2007 decision that established that greenhouse gases could be considered pollutants under the Clean Air Act if the EPA determined that they contributed to climate change. On Monday, only Justices Samuel Alito and Clarence Thomas indicated that they would overturn that decision.

Abbott had challenged the Obama administration’s new permitting requirements soon after they were issued in 2012, arguing that the 2007 decision had been wrong and should be overturned.

Instead, Monday’s decision ratified the 2007 holding. On a 7-2 vote, the justices ruled that the EPA may require facilities to seek a permit for greenhouse gases if they are already regulated by the EPA for other pollutants.

That pleased environmentalists.

“The decision builds on the court’s prior decisions upholding the most important Clean Air Act authority in the fight against global warming — EPA’s responsibility to set national standards to curb the carbon pollution emitted by automobiles and power plants,” David Doniger of the Natural Resources Defense Council said in a statement Monday.

What Scalia and four justices ruled the EPA can’t do is use greenhouse gas emissions as the sole reason to require facilities to seek a permit.

But the practical impact of that distinction is probably small. By the EPA’s calculation, about 83 percent of the nation’s annual greenhouse gas emissions from stationary sources are caused by facilities already regulated by the EPA. That means that even after Monday’s decision, the EPA can make them subject to its greenhouse gas rules.

Texas plants that already emit large amounts of traditional pollutants, including its large coal-powered plants, will almost certainly find themselves having to comply with the new rules for greenhouse gases as a result of Monday’s decision.

Had the EPA prevailed entirely Monday, it could have regulated thousands of smaller facilities, but the total amount of emissions that would have been covered by the rules would have grown to just 86 percent.

Still, Washington-based lawyer Steve Segal of Bracewell & Giuliani said the ruling contains blessings for industry and for states that oppose the EPA’s strong hand when it comes to greenhouse gases.

Scalia’s opinion repeatedly reminds the EPA that its authority to mandate changes by facilities that emit greenhouse gases is limited, especially if the changes would be cost-prohibitive. That reminder and others,Segal said, should be read as a warning from the court that it will look at the EPA’s latest rules with skepticism. The rules could be finalized later this year.

“I am very glad to see the language that clarifies that the Massachusetts vs. EPA decision [in 2007] has limits,” Segal said. “Yes, it upholds the EPA’s authority, but it also reminds the agency of just how narrow a box within which it can exercise that authority.”

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